Tuesday, February 16, 2016

The
practice of the Senate not confirming Supreme Court nominees in an Election
Year has not been made up by Republicans in response to Justice Scalia's
untimely passing. It is a rule first outlined by the Democrat poised to
replace Sen. Harry Reid as Minority Leader. In July
2007, fully 18 months before the end of President George W. Bush's second
term of office, Sen. Chuck Schumer advocated blocking any further Bush
nominees to the Supreme Court:

[F]or the
rest of this President’s term . . . : We should reverse the presumption
of confirmation. The Supreme Court is dangerously out of
balance. . . . Given the track record of this President and the
experience of obfuscation at the hearings, with respect to the Supreme Court,
at least: I will recommend to my colleagues that we should not
confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

As we noted
in Part 1 of this series, in modern times,
Supreme Court vacancies that occur in election years are traditionally not
filled until after the election, giving the people an opportunity to speak on
the issue. The Senate holds the constitutional power to advise and
consent on the president's nominees, but per Sen. Schumer's own rule, the
Senate should not confirm a potential Supreme Court justice nominated by a lame-duck president.